Conor Friedersdorf: Supreme Court takes stand on privacy

When police arrest someone who is carrying a smart phone on his person, should they be able to search its contents? Police officers all over America thought so. So did the Obama administration.

Last week, the Supreme Court emphatically disagreed.

“The surprising thing about the Supreme Court’s decision on police searches of cellphones was its unanimity,” Chicago Tribune columnist Steve Chapman aptly observed. “Aligned on the same side of a major law enforcement issue were liberal and conservative justices who normally fight like cats and dogs. All agreed that it’s intolerable to let cops ransack the voluminous contents of mobile phones.”

Chief Justice John Roberts wrote the 9-0 decision.

“Modern cellphones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse. Cellphones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” he argued. “The term ‘cellphone’ is itself misleading shorthand; many of these devices are, in fact, minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.”

That's an impressive display of technological understanding for the Supreme Court.

This decision is long overdue. Civil libertarians have complained about overzealous cellphone searches for years. Imagine getting pulled over for speeding only to have a police officer scroll through your iPhone pictures or read text messages between you and your spouse.

Doing so without a warrant has always seemed outrageous to me.

Yet the practice was common all over America before last week. Think about what that means. Law enforcement agencies did something so blatantly unconstitutional that not even a single person on the Supreme Court would allow it. Alas, police often do whatever they can get away with until a judge tells them to stop. In fact, the cell-phone decision is similar to another recent Supreme Court case striking down police use of GPS technology to track people. In both cases, judges recognized how much modern technology can imperil privacy.

The decisions in these cases could be a sign of things to come.

Take the ongoing debate over spying by the National Security Agency. These decisions don’t affect the NSA directly. But they suggest a Supreme Court attuned to how much of our privacy is hostage to digital technology. Roberts went so far as to argue that protecting our privacy is worthwhile even when limits on state actors will make it harder for them to protect us, a sentiment in line with the Constitution but rarely expressed by conservative judges.

Anti-NSA lawsuits have only just begun. Lower-court judges have reached conflicting judgments about their legality. For that reason, an NSA case is likely to come before the Supreme Court.

For the first time, I’m confident that the NSA will lose.

Now that the Supreme Court has decided, unanimously, that it isn’t OK to search an arrestee’s cellphone without a warrant, are they really going to uphold a program that surveils the metadata of millions of people who’ve never even been arrested? If so, I can’t see why.

Then again, the Supreme Court is often deferential to the executive branch in the realm of national security, so I wouldn’t bet the house on my prediction. At the very least, you can now rest assured that if you’re pulled over or arrested by a police officer, who demands to search your phone, you can say, “Sorry, you’re going to need a warrant for that.”

Police officials, who can read the Fourth Amendment as easily as any of us, ought to have respected its demands all along. Now that the federal judiciary has spoken, I trust things will be different.

Staff opinion columnist Conor Friedersdorf also is a staff writer for the Atlantic.

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